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Redacted I-140 OR Denial from USCIS

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Redacted I-140 OR Denial from USCIS Powered By Docstoc
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                                                                                                                                                                     U.S. Department of Homeland Security
                                                                                                                                                                     P,O, Box 82521
                                                                                                                                                                     Lincoln. NE 68501-2521
                                                                                                                                                  '. ~ r •   •




                                                                                                                                                                     u. S. Citizenship
                                                                                                                                                                     and Immigration
                                                                                                                                                                     Services

                                                                                                                                                                                        Refer to File Number:
       DEC 1 2 2011
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Dear Sir or Madam:

Case Type: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER
Beneficiary: .           ..        ...                I
                                                                                                                                                                 I




                                                                                                         DECISION


This petition, filed on June 15,2011 seeks to classify the beneficiary as anlinunigl'ant under section 203(b)(1)(B)
of the Immigration and Nationality Act, as amended, An alien qualifies        this classification if:                                                  fl
           (i) the alien is recognized intemationally as outstanding a specific academic area,
           (ii) the alien has at least 3 years of experience in teaching or l'eseai'ch in the academic area, and
           (iii) the alien seeks to enter the United States­

                       (1) for a tenured position (01' tenure-track position) within1a university 01' institution of higher
                       education to teach in the academic area,
                       (II) f~r a ?ompal'~ble ~osition with a university or institutfon of higher education to conduct
                       reseatch In the atea, or                            . ":,,1'1:.,1;';"\': ).r·" ,"", '''',.•.i'.... ·\.li,".~.I,' ..T\.."!' ..V'i.,!.•\.
                       (III) for a comparable position to conduct research 'in the area with a department, division, 01'
                       institute of a private employer, if the department, divisiop, or institute employs at least 3 persons
                       full-time in research activities and has achieved docume ed accomplislunents in an academic
                       field,

Th~ 1'P.(!OI'cl innirmtp.!,:
   .  . - - _.   . - .... -             .
                               fhnt the netitionel' de!':il'e!': the sel'vice~ of the benefici IV as a research associate.
                               .. .....       - _.    .   -- ---...        . .          ..      ...                   -                   -




Title 8, Code ofFederal Regulations, Pait 204.5(i)(3) states that a petition                                                                                 ror an outstanding professor or
researcher must be accompanied by:



NcbraslHl Sel'vicc Ccnter                                                                                                                                             www.uscis.go,t
         Page 2                                                                         I

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                  (i) Evidence that the professor 01' researcher is recognized intematitnallY as outstanding in the academic
                  field specified in the petition, Such evidence shall consist of at leal t two of the following:

                          (A) Documentation of the alien's receipt of major prizes 01' awards for outstanding achievement
                          in the academic field;                                        !


                          (B) Documentation of the alien's membership in associati~ns in the academic field, which
                          require outstanding achievements oftheit' members;           I

                          (C) Published material in professional publications Writtel· by others about the alien's work in the
                          academic field. Such material shall include the title, date, and author ofthe material, and any
                          necessary translation;
                          (D) Evidence of the alien's participation, either individuallr or on a panel, as the judge ofthe
                          work of others in the same or an allied academic field;
                          (E) Evidence ofthe alien's original scientific or scholarly Ij'esearch contributions to the academic
                          field; or                                                    ,
                          (F) Evidence of the alien's authorship of scholarly books ~r a11icles (in scholarly journals with
                          international circulation) in the academic field;            I

                                                                                        ,

......
                  (ii) Evidence that the alien has at least tlu'ee years of experience in ~eaching andlor research in the
                  academic field, Experience in teaching or research while working on an advanced degree will only be
                  acceptable if the alien has acquired the degree, and if the teaching ~uties were such that he or she had full
                  responsibility for the class taught or if the research conducted toward the degree has been recognized
                  within the academic field as outstanding. Evidence ofteaching and/or research experience shall be in the
                  form ofletter(s) from CUll'ent or former employer(s) and shall inclJde the name, address, and title of the
                  writer, and a specific description of the duties performed by the alien.

         8 CFR 204.S(i)(3)(i) requires that a petition for an outstanding professor 01' researcher be accompanied by
         "evidence that the professor 01' researcher is recognized internationally a* outstanding in the academic field
         specified in the petition," The regulation1ists six criteria (listed above), bfwhich the beneficiary must satisfy
         at least two. itt!? important to note here that the controlling purpose ofthe regulation fs to establish
         international recognition, and any evidence submitted to meet these criteria must therefore be to some extent
         indicative of international recognition.                                       !




         In 2010, the U,S. Court of Appeals for the Ninth Circuit reviewed the de~ial of a petition filed under a similar
         classification set forth at section 203(b)(1)(A) of the Act. Kazarian v, USC/S, 2010 WL 725317 (9 th Cil'.
                                                                                   I
         March 4,2010). The Kazarian decision set fOlih a two~part approach where evidence is first counted and
         then considered in the context of a final merits determination,                I




         Criteria Analysis


         (n Documentation of the beneficialY's receipt of major prizes 01' awards       for outstanding achievement in the
         academic field;                                                          .1




         The petitioner has not submitted any evidence regarding this criterion.        I

          ii Documentation of the beneficial' 's membershi in associations in the academic field which re uil'e
         outstanding achievements of their members:
                  Page 3

                                                                                             I
                  The petitioner has not submitted any evidence regarding this cdterion.      I

                   (iii) Published material in professional publications written by others abput the beneficiary's work in the
                  academic field. Such material shall include the title, date, and author of the material, and any necessary
                  translation

                  The petitioner has not submitted any evidence regarding this criterion.
                                                                                             I

                  (iv) Evidence of the beneficiary's participation, either individually or on ~ panel, as the judge ofthe work of
                  others in the same or an allied academic field:
                                                                                             I
                  The record contains evidence establishing the beneficiary's participationlas a referee and peer reviewer for
                  discipline related publications. Under the plain language of this criterio~, set forth at 8 C.F.R. section
                  204.S(i)(3)(i)(D) the submitted evidence qualifies.                        i




                   v Evidence of the beneficia's ori inal scientific or scholar!

                  The petitioner has submitted several letters iI-om the beneficial's eel'S and conea ues and evidence of
                  conference pal1icipation in order to establish the alien's original contribu ions. The Service acknowledges the
                  plain language of 8 C.F.R. section 204.S(i)(3)(i)(E) does not require the beneficiary's contributions to
                  themselves be internationally recognized as outstanding. However the pTain language does require original
                  research contributions, which is a higher standard that simply original re~eal'ch, or original presentations. Had
                  the regulation desired merely the submission of original research, it woulf have excluded the word
                  "contributions." Additionally, the plain language requires the contributiqn to be "to the academic field" rather
                  than to an individual institution, campus or labol'atOlY. Having reviewed the plain language of the criterion,
                  the Service has not received an evidence to indicate the beneficiary's co ference participation has risen to
                  the level of a contribution to the academic field.

                With regard to the letters ofreference"the opinions of expelis in the field, \~hi1e not without weight, cannot form
                the comerstone ora successful claim ofintemational recognition. CIS maYf in its discretion, use as advisOlY
/Jei?Y          opinions statements submitted as expeli testimony. However, where an opinion is not in accord with other
(~ffiJ~,-J;'d infOlmation or is in any way questionable) CIS is not required to accept t9at evidence, or may give less weight
                to it. Matter o/Caron International, 19 I &N Dec. 791 (Comm. 1988). IThis Service acknowledges opinions
 e.;<'~~.       presented in letters written expressly for this proceeding, but these do not overcome the lack of documentalY
                                                                                     J

               .evidence that the beneficialY's work has made an impact in the field. 01' thatlthe beneficialY is considered

  !1ISo/"HCln~ outstanding in the field .•Assertions about the value of the beneficiary's wp1'k do not establish or imply 

   iA UlJ!/e'J international recognition. This is not indicative of international recogniti<fln and does not establish that the 

                alien has made original contrib~tions to the field.                            I

  JV:)+      I
  e.ll'tf. .                                                \

                  (vi) Evidence ofthe beneficiary's authorship of scholarly books or articles pn scholal'ly ioumals with 

                  international circulation) in the academic field: 



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                               r
                                                                                                          l1o)d   T::: t::(
                  In light of the above, the petitioner has submitted qualifying evidence thai meets at least two of the             t <   Jl'r   I

                 .criteria. satisfying the minimum requirements for this classification. SpeCIfically, the petitioner submitted (,)V'~(4 C
                  evidence to meet criteria set forth at 8 C.F.R. section 204.5(i)(3)(i)(D) an~ 8 C.F.R. section                ~.
                  204.5(i)(3)(i)(F). Now, the Service will move to the final merits detetminrtion which considers whether
                                                                                                 !
                                                                                                 'I
Page 4

 the evidence is consistent with the statutory standard in this matter, international recognition as
 outstanding.                                                                   I




 Final Merits Determination


 It is important to note the controlling purpose of the regulation is to establish internationall'ecognition,
 and any evidence submitted to meet these criteria must therefore be to some extent indicative of
 international recognition. More specifically, outstanding professors and researchers should stand apart in
 the academic community through eminence and distinction based on intemational recognition. The
 regulation at issue provides criteria to be used in evaluating whether a professor 01' researcher is deemed
 outstanding. Employment-Based Immigrants, 56 Fed. Reg. 30703, 30705 (proposed July 5,
 1991)(enacted 56 Fed. Reg. 60897 (Nov. 29, 1991). The only eVidence~hat will be considered in the
 final merits determination is the evidence of the beneficiary's accomplis ments that predate the filing of
 the petition.                                                              •
                                                                                !



The nature of the beneficiary's judging experience is a relevant considerJtion as to whether the evidence
is indicative of the beneficiary'S recognition beyond his own circle of colilaborators. The Service cannot
ignore that most scientific joumals are peer reviewed and rely on many scientists to evaluate submitted
                                                                                                                      J
                                                                                                               OJ sc()'oJ....
                                                                                                                             ~/'-'q

articles. In fact, reviewing manuscripts is recognized as aprofessional obli ation ofresearchers who publish            ..,or
themselves in scientific joumals. Thus, eel' review is routine in the field an not evel eel' reviewer enjoys [<L'' ' '
sustained national or intemational acclaim. Without evidence such as the beneficiaty reviewed articles for a       ~
joumal or conference that credits a small, elite group ofreferees, evidence of a large number of independent v'
requests from a substantial number ofjoumals articles or evidence the beneficiary's service in an editorial
position extended over a substantial period oftime, the Service cannot concl.ude the beneficiaty's judging              . ft
experience is indicative of international recognition.                                                                        J
                                                                                                                       \~ lI . ~
 Regarding the alien's authorship of scholarly books or articles the record shows that the beneficiary has written lr:~~1'
                                                                                I                                        .•




 severaljournal publications. rhe record contains evidence that the beneficiary'S work has been cited in           (,l
 limited circumstances. Please note that the vel' act of ublishin one's l' search does not constitute a
,scholarly contribution ofmajol' significance. Authorship and publication is a normal part of a researcher's
 duties, and there is no evidence ofrecord that the beneficiary's publications are indicative of international
 recognition.

                                                                               J,
 While the Service does acknowledge the beneficiary's accomplisinnents, it not apparent the beneficiary has
 o
.	 btained a level of outstanding within the discipline. Therefore, it is the decision of this Service to deny this
 petition.

The burden of proof in these proceedings rests solely with the petitioner. s~e MRtter ofTreasure Craft of
California, 14 I&N Dec. 190. In this case the petitioner has not sustained thft burden.
                                                                                I


The petition is hereby denied.

RIGHT TO APPEAL: If you wish to appeal this decision to the Ad inishoative Appeals Office, 01' file a
motion to reopen or reconsider with this office, you may do so. Any a peal or motion must be filed using
FOlID I~290B, Notice of Appeal or Motion. Form I~290B must be filed :\'ithin 30 days ii-om the date of this
notice (33 days if this notice was received by mail) with the appropriate lling fee and other documentation in
support of the appeal or motion. Do not send the completed Form I~ 90B directly to the Administrative
PageS

Appeals Office, or the Nebraska Service Center. For more information:about filing appeals, andlor motions,
as well as fee required and filing locations, and to download Ponu 1-290B~ please visit the USCIS website at
www.l.1scis.gov. You may also contact the National Customer Service C~ntel' (NCSC) at 800-375-5283.
                                                                       I




Sincerely,




Mark J. Hazuda
Director

NSCIBWB@@2

Enclosure: Fonn 1-290B

				
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